Posted 04 April 2012
In Siberian Pine Nut Oil / K Charleston / 17527 (4 November 2011) the Directorate held, inter alia, that the claims objected to by the complainant were unsubstantiated and in contravention of Clause 4.1 of Section II of the Code. A consumer laid a complaint with the ASA that this company continues to abuse the ruling. The ASA agreed. This is another complaint where the lawyer, Saul Shoot from Fluxmans attorneys, came to bat for the company making the claims. Read his vexatious language used to defend his client.
|Siberian Pine Nut Oil / K Charleston / 17527 |
Ruling of the : ASA Directorate
In the matter between:
Kevin Charleston Complainant(s)/Appellant(s)
The Other Option Alternative Health Trading cc t/a The Other Option Respondent
04 Apr 2012
In Siberian Pine Nut Oil / K Charleston / 17527 (4 November 2011) the Directorate held, inter alia, that the claims objected to by the complainant were unsubstantiated and in contravention of Clause 4.1 of Section II of the Code. It was also held, inter alia, that there was nothing before it to unequivocally show that the respondent’s product, when consumed at the dose recommended, will deliver the claimed benefits.
The print advertisement was headed “HEAL YOUR STOMACH” and claimed that the respondent’s “COLD PRESSED” Siberian Pine Nut Oil acts as a “DIGESTIVE REMEDY”, and has achieved “SUCCESSFUL RESULTS IN THE TREATMENT AND RELIEF OF Acid Reflux, Peptic Ulcers, H.Pylori Gastritis, IBS, Gas”.
It described the product as “A natural anti-inflammatory which repairs, protects and strengthens the digestive mucosal lining and assist with digestion of food to prevent fermentation which can lead to a build up of acid and gas”. It further stated “Research proves that SIBERIAN Pine Nuts contain the richest source of healing properties of ALL the pine nut species”.
The respondent’s website also claimed that the product was “… an effective treatment of Acid Reflux, Barrett’s Oesophagus, Bloating, Blood Sugar Levels, Cholesterol Levels, Decreased Immunity, Gas, Gastritis, GERD, H Pylori, Hypertension, IBS, Low Energy, Peptic Gastric & Duodenal Ulcers, Ulcerative Colitis, Weight Loss”.
Under the heading “blood sugar levels”, it stated, inter alia, that “South Africa’s more than six million diabetics and those in a pre-diabetic state can benefit from the stabilizing effect Siberian Pine Nut Oil DIGESTIVE REMEDY has on the production of GLP-1”.
The respondent was instructed to withdraw its advertising with immediate effect within the deadlines stipulated in Clause 15.3 of the Procedural Guide and not use them again in future.
SUBSEQUENT AMENDMENTS TO THE RULING
Fluxmans attorneys, acting on behalf of the respondent, pointed out an administrative error in the ruling, resulting in the Directorate also considering the provisions of Appendix F of the Code.
The Directorate, realising that it initially received two complaints from the complainant against the respondent, was able to establish that the version of the complaint initially sent on to the respondent for comment did not, in fact, refer to or rely on Appendix F. As a result, the Directorate exercised its discretion and amended the ruling to remove any references to this portion of the Code. The remainder of the ruling, however, was not affected or amended, and therefore remained in force.
SUBSEQUENT BREACH ALLEGATION
In a letter dated 14 February 2012, a complainant not party to the original dispute, Prof. Jobson lodged a breach complaint regarding the respondent’s website www.theotheroption.co.za. The complainant submitted, inter alia, that the respondent continued to make the claims ruled against.
It was submitted that the claims still appearing on the website more than three months after the ruling included the following:
“[Siberian pine nut oil digestive remedy] is effective in the treatment of Acid Reflux, Barrett’s Oesophagus, Bloating, Blood Sugar Levels, Cholesterol Levels, Constipation, Decreased Immunity, Gas, Gastritis, GERD, H.Pylori, Hypertension, IBS, Low Energy, Peptic Gastric & Duodenal Ulcers, Ulcerative Colitis, Weight Loss.”
The complainant also attached the screen shot of the top part of the webpage to illustrate this, and added that the claims about diabetes appear on a different section, accessed directly from the website under the heading “added benefits”
The complainant further requested the ASA Directorate to impose the severest of sanctions.
RELEVANT CLAUSE OF THE CODE OF ADVERTISING PRACTICE
In light of the breach allegation the Directorate considered Clause 15 of the Procedural Guide (Enforcement of rulings) as relevant.
Fluxmans attorneys, on behalf of the respondent, effectively raised the following arguments:
The ASA has no jurisdiction because the respondent is not a member of the Health Products Association (the HPA);
Prof Jobson is a vexatious complainant merely abusing the ASA to further his vendetta against complementary medicines (a similar argument was made for the original complainant, Mr Charleston);
The Directorate is biased against it and ought to recuse itself and refer the matter to a higher authority.
ASA DIRECTORATE RULING
The ASA Directorate considered all the relevant documentation as submitted by the parties.
It should be noted that the respondent was advised, in a letter addressed to its attorneys of record, that the Directorate requires it to address the merits of the breach allegation as well, in the event that its procedural or preliminary concerns as summarised above are dismissed.
In response, it refused to do so on the grounds that this would result in it incurring further legal costs which may be unnecessary. It also interpreted this as indicative of the fact that the Directorate had already “pre-judged” the matter, which it again views as bias.
In Vodacom 4U / MTN / 10575 (8 April 2008), the Directorate ruled as follows:
“The Directorate notes, however, that in terms of its procedures, an advertiser is given an opportunity to respond to a complaint in full. Should an advertiser raise a preliminary issue such as the one raised by the respondent, it must also address the merits in the alternative, so as to cover the possibility that the preliminary point might be dismissed. If the advertiser fails to also address the merits of the matter, it runs the risk of having its point dismissed and then leaving the issue to be decided without its comments.
The Code specifically requires all advertisers to have in their possession all documentary evidence before advertising, so that when a complaint is made against it, it can submit such evidence in a short space of time. The respondent can therefore not argue that it would be prejudiced by virtue of having to subject its substantiation to independent verification, as it was compelled to have such independent verification on hand before it placed its advertising.
The Directorate is satisfied that the principles audi alteram partem were satisfied, and that the procedures of the Code were adhered to.
The respondent’s points in limine have been rejected. Accordingly, the Directorate will proceed to consider the merits of the matter”.
Likewise in this matter, the respondent was advised in writing that the Directorate requires a response on the merits as well, in the event that the preliminary concerns raised are rejected. The respondent opted not to comply.
It is not clear how or why the respondent interprets this request from the Directorate as an indication of bias, especially as the letter to the respondent advised that “.
“We will therefore treat your concerns as points in limine and will be dealt with in a ruling … we kindly request a response to the breach complaint so as to enable us to [deal] with all issues at once”.
There is no suggestion of malice or of the Directorate having pre-judged the matter. In fact, the invitation to the respondent was in the interest of equity to ensure that the respondent was not caught “off guard” by any decision on the merits when it had not argued same.
The respondent also correctly pointed out that the Directorate initially identified and ruled on sections of the Code that were not contained in the complaint sent to it (reference to Appendix F). As detailed above, however, this was a bona fide mistake, which was immediately acknowledged, apologised for, and rectified. Such actions are hardly indicative of a bias.
The Directorate therefore rejects the accusation of bias, and therefore sees no reason to recuse itself from this matter.
Insofar as its preliminary concerns are relevant, the respondent argued that it is not a member of the HPA and as such does not fall under the ASA’s jurisdiction.
It cannot be disputed that the ASA is only empowered to consider and rule on allegations that any disputed advertising contravenes the provisions of the Code of Advertising Practice. This is echoed not only in various rulings over the years, but also in the Code itself.
Clause 2.1 of Section I states, inter alia, that “The primary objective of this Code is the regulation of commercial advertising. It applies therefore (except as expressly provided further on) to all advertisements for the supply of goods or services or the provision of facilities by way of trade …”
In Pretoria Civil Action & Another / City of Tshwane Metropolitan Municipality (15 November 2005), the Final Appeal Committee (the FAC) also emphasised the fact that the ASA is obliged to and entitled to rule on advertising complained of even if the advertiser does not concede to the ASA’s jurisdiction. It held:
“Even if the appellant had not appeared, after giving it an opportunity to do so, the ASA, at the request of a consumer, with due notice to the appellant could make a ruling binding on its members. The members in adhering to the ASA’s ruling would not be violating any protectable legal right of the appellant and would not commit an unlawful act. Nor would the ASA be doing so in making the ruling and nor would the consumer in asking for such a ruling. Vide Tothill vs. Gordon, 1930 WLD 99 and the ruling of this committee in National Brands Limited vs. Kwality Biscuits (Pty) Ltd”.
While the respondent may, or may not, have advertising agents that belong to a constituent member of the ASA, it may well choose to utilise a member of the ASA to carry its advertising (and has in fact done so before, as the original complaint also related to a newspaper advertisement). If this were to happen, such members, and indirectly, the respondent, would be bound by all relevant rulings. It is also clear that the ASA is required to consider all “valid” complaints. The complaint currently at issue complied with the provisions of the Code and is therefore regarded as valid.
The respondent’s argument that it is not subject to the ASA’s jurisdiction is therefore rejected.
Further, the respondent argued that Prof Jobson (who lodged the breach allegation) and Mr Charleston (who lodged the original complaint) are both vexatious complainants who merely seek to further their vendetta against the complementary medicines industry.
Both the status and standing of Prof Jobson and Mr Charleston have recently been ruled on by the Directorate (refer Vitaforce Skin Care / R Jobson / 19035 (23 March 2012) and Solal Stress Damage Control / K Charleston / 19746 (22 March 2012) for more clarity). It is not necessary to repeat the discussions here save to confirm that the Directorate is, at present, satisfied that neither Prof Jobson nor Mr Charleston qualify as vexatious or competitor complainants. The arguments put forward by the respondent in this matter do not change that view at this time.
As a result, the Directorate rejects the respondent’s argument that Prof Jobson and / or Mr Charleston complaints or vexatious. Similarly, and by virtue of the above, there is no need to even consider whether or not the breach allegation should be suspended as argued by the respondent.
The only remaining consideration relates to the actual merits of the breach allegation.
As correctly noted by Prof Jobson, the initial ruling was issued on 4 November 2011. The amended ruling was communicated to the parties on 13 February 2012, and at that time the parties were specifically reminded that “… the remainder of the ruling remains in effect and valid”.
The claims relating to the breach allegation, however, were still available on the respondent’s website on 14 February 2012, a little over three months after the initial ruling, and clearly in contravention of the two week period allowed for in accordance with clause 15.3.8 of the Procedural Guide.
The respondent has not denied, or bothered to explain this.
In fact, during the Directorate’s deliberations which occurred towards the end of March 2012, the following claims still appeared on the respondent’s website in defiance of the ruling:
“… It is effective in the treatment of Acid Reflux, Barrett’s Oesophagus, Bloating, Blood Sugar Levels, Cholesterol Levels, Constipation, Decreased Immunity, Gas, Gastritis, GERD, H. Pylori, Hypertension, IBS, Low Energy, Peptic Gastric & Duodenal Ulcers, Ulcerative Colitis, Weight Loss”.
“South Africa’s more than six million diabetics and those in a pre-diabetic state can benefit from the stabilizing effect Siberian Pine Nut Oil DIGESTIVE REMEDY has on the production of GLP-1”.
From this it is clear that the respondent has deliberately disregarded the ASA ruling, and in doing so the provisions of Clause 15 of the Procedural Guide.
The breach allegation is therefore upheld, and the respondent again instructed to withdraw the advertising with immediate effect within the deadlines stipulated in the Code.
Given the apparent deliberate defiance shown by the respondent as well as the request for sanctions by Prof Jobson, the Directorate affords Prof Jobson ten working days to comment on whether or not sanctions are called for and if so, which sanctions in terms of Clause 14 of the Procedural Guide should apply.
After this, the respondent will be afforded an equal opportunity after which the Directorate will determine the issue of sanctions in accordance with the provisions of the Code.